93 Decision Citation: BVA 93-01699
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
Sitting at Portland, Oregon
DOCKET NO. 89-13 137 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
chronic obstructive pulmonary disease (COPD).
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hypertension.
3. Entitlement to service connection for a left eye
disability.
4. Entitlement to an effective date earlier than
September 12, 1986, for a separate 20 percent schedular
rating for beriberi neuritis of each lower extremity.
5. Entitlement to an effective date earlier than
September 12, 1986, for a total rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented: American Ex-Prisoners of War, Inc.
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's spouse and F. A. Jossi
ATTORNEY FOR THE BOARD
G. E. Guido, Jr., Counsel
INTRODUCTION
The appellant-veteran served on active military duty from
December 1940 to February 1946 and from June 1948 to June
1963. He was a prisoner of war (POW) of the Japanese
government from May 1942 to February 1945.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions in May 1987 and September
1988 of the Portland, Oregon, Department of Veterans Affairs
(VA) Regional Office (RO). The notice of disagreement to
the May 1987 rating decision, pertaining to the issues of an
earlier effective date for increased ratings and a total
rating based on individual unemployability, was filed in
February 1988. The statement of the case was issued in
March 1988. The substantive appeal was received in July
1988. The notice of disagreement to the September 1988
rating decision, denying the claim of entitlement to
service-connection for COPD , hypertension and left eye
disability, was filed in March 1989.
A hearing was held in April 1989 before a traveling section
of the Board. The appeal was docketed at the Board in May
1989. In November 1989, in accordance with the governing
regulation then in effect, 38 C.F.R. § 19.151(b) (1989), the
veteran changed representation in favor of American
Ex-Prisoners of War, Inc. In December 1989, the Board
remanded the case for additional development.
A supplemental statement of the case, addressing the
claims of service connection for COPD, hypertension and left
eye disability, was furnished in August 1991. The case was
returned to the Board in February 1992. In May 1992, the
veteran's representative reviewed the claim and no
additional argument was made.
In a June 1963 application, the veteran claimed VA
compensation for optic neuritis. In a January 1964 rating
decision, the RO denied the claim. That same month, VA
notified him of the determination, the right to appeal and
the time limit for the appeal. He did not file an appeal
within one year thereafter. In August 1970, 38 U.S.C. § 312
(1988) [recodified as 38 U.S.C.A. § 1112 (West 1991)
effective May 7, 1991], was amended to provide a life-time
presumption of service connection for malnutrition
(including optic atrophy associated with malnutrition), for
former prisoners of war.
As this provision was obviously not in effect at the time of
the January 1964 rating decision, the Board will review all
the evidence of record pertinent to the issue of an eye
disability without regard to the prior rating decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that after repatriation pulmonary
disease, including bronchitis, and hypertension were found
on examination at Letterman General Hospital in 1945. He
states pulmonary disease was also documented in August 1955
and October 1960.
The veteran contends that astigmatism was acquired in
service and that his present decreased visual acuity is due
to nutritional deficiency suffered as a prisoner of war.
The veteran contends that the date of entitlement for
increased compensation should be August 25, 1977, the date
of receipt of his claim which was not finally adjudicated
until the rating decision in May 1987.
At the April 1989 hearing, the veteran's former
representative argued that the Board's June 1986 decision,
pertaining to increased ratings for residuals of beriberi
and a total rating based on individual unemployability,
involved clear and unmistakable error because the veteran
had not been examined by a specialist in neurology, who was
specified as being familiar with nutritional deficiency
disease, as requested in the Board's January 1985 remand.
It is argued that the benefit-of-the-doubt doctrine applies.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
folders (four volumes) and attachments (four volumes of
medical records), and for the reasons and bases herein set
forth, it is the decision of the Board that the veteran has
not submitted new and material evidence to reopen the claim
of entitlement to service connection for COPD and
hypertension. The Board also decides that the preponderance
of the evidence is against the claim of entitlement to
service connection for a left eye disability and an earlier
effective date for increased ratings for residuals of
beriberi and a total rating based on individual
unemployability.
FINDINGS OF FACT
1. In a January 1985 decision, the Board of Veterans'
Appeals denied the veteran's claim of entitlement to service
connection for COPD on the basis that it was not shown in
service or for many years thereafter.
2. While additional evidence pertaining to COPD associated
with the claim to reopen is new as it has not been
previously considered, it does not tend to alter the facts
previously established that COPD was not shown to be present
in service or for several years after service; thus, there
is no reasonable possibility that the new evidence when
viewed in context of all the evidence would change the
outcome.
3. In a January 1985 decision, the Board of Veterans'
Appeals denied the veteran's claim of entitlement to service
connection for hypertension on the basis that it was neither
shown in service nor manifested to a compensable degree
within one year of service discharge.
4. While additional evidence pertaining to hypertension
associated with the claim to reopen is new as it has not
been previously considered, it does not tend to alter the
facts previously established that hypertension was not shown
to be present in service or for several years after service;
thus, there is no reasonable possibility that the new
evidence when viewed in context of all the evidence would
change the outcome.
5. An acquired left eye disability was not shown to be
present in service; nor is the present left eye disability
the result of injury suffered or disease contracted in
service.
6. In a June 1986 decision, the Board denied the veteran's
claim of entitlement to increased ratings for residuals of
beriberi and a total rating based on individual
unemployability.
7. The September 12, 1986, VA social and industrial survey
was considered by the RO as an informal claim for increased
compensation.
8. In a May 1987 rating decision, the RO granted a separate
20 percent rating for beriberi neuritis of each lower
extremity and properly assigned September 12, 1986, the date
of receipt of the informal claim as the effective date of
the award.
9. In a May 1987 rating decision, the RO granted a total
rating based on individual unemployability and properly
assigned September 12, 1986, the date of receipt of the
informal claim as the effective date of the award.
CONCLUSIONS OF LAW
1. The January 1985 decision of the Board of Veterans'
Appeals, denying entitlement to service connection for COPD,
is final; the evidence submitted with the claim to reopen is
not new and material; and the claim is not reopened.
38 U.S.C.A. §§ 7104(b), 5108 (West 1991).
2. The January 1985 decision of the Board of Veterans'
Appeals, denying entitlement to service connection for
hypertension, is final; the evidence submitted with the
claim to reopen is not new and material; and the claim is
not reopened. 38 U.S.C.A. §§ 7104(b), 5108 (West 1991).
3. An acquired left eye disability was not incurred in or
aggravated by service; nor may service incurrence be
presumed. 38 U.S.C.A. §§ 1110, 1112(b), 1131 (West 1991).
4. The requirements for an effective date earlier than
September 12, 1986, for a separate rating of 20 percent for
residuals of beriberi of each lower extremity have not been
met. 38 U.S.C.A. § 5110(a)-(b)(2) (West 1991); 38 C.F.R.
§ 3.400(o)(1)-(2) (1991).
5. The requirements for an effective date earlier than
September 12, 1986, for a total rating based on individual
unemployability have not been met. 38 U.S.C.A.
§ 5110(a)-(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(1)-(2)
(1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In response to the request for medical records as directed
in the Board's December 1989 remand, the medical facilities
at March and Norton Air Force Bases and the Loma Linda, VA
Medical Center reported that they had no record of the
veteran. The medical file from the Portland, VA Medical
Center and records of private physicians were obtained. The
Board is satisfied that no further assistance to the veteran
is required to comply with the statutory duty to assist
under 38 U.S.C.A. § 5107(a) (West 1991). The issues of
earlier effective dates require no further development as
the pertinent evidence is already on the record.
I. Service Connection for COPD and Hypertension
Based on New and Material Evidence
Background
The evidence of record at the time of the Board's January
1985 decision is summarized as follows:
Service medical records for the first period of service
disclose that after repatriation the veteran was
hospitalized at Letterman General Hospital in March 1945, a
single blood pressure reading of 140/90 was recorded. The
pertinent diagnosis was essential hypertension, cause
unknown. On hospital transfer to Crile General Hospital in
April 1945, three blood pressure readings below 140/90 were
recorded. During hospitalization for avitaminosis in
October 1945, blood pressure was 130/90. On separation
examination in February 1946, blood pressure was below
140/90 and the lungs were evaluated as normal.
Blood pressure was within normal limits and the
cardiovascular and respiratory systems were described as
normal on VA examinations in May and September 1946 and in
December 1947.
On entrance examination in June 1948 for the second period
of service, blood pressure was 130/90. Between October 1950
and June 1955, the veteran was seen for acute bronchitis,
upper respiratory infections and a productive cough. In
August 1955, he was hospitalized for chest pain and a
productive cough of about two weeks' duration. Pulmonary
disease was suspected, but no disease was found.
In January and November 1959 and in October and in November
1960, he had upper respiratory infections. Between December
1950 and November 1961, all blood pressure readings recorded
were below 140/90 and chest X-rays were negative for lung
disease.
On retirement medical examination in May 1963, history
included occasional colds and dyspnea on severe exertion
since 1957. Blood pressure was 142/84. On further
evaluation for several complaints including dyspnea by
internal medicine, there was no history of cardiovascular or
pulmonary disease. Blood pressure was 130/90. There was no
evidence of organic cardiovascular disease.
On VA examination in October 1963, a single blood pressure
reading below 140/90 was recorded. A chest X-ray was
negative.
On VA examination in May 1979, history included hypertension
of eight months duration which was controlled with
medication, a 45 pack year smoking history, a two year
history of dyspnea on exertion with expiratory obstruction
on pulmonary function tests. On VA examination in November
1979, the diagnosis was COPD with chronic bronchitis due to
continued cigarette smoking.
The veteran testified that that he has had chronic
bronchitis since his POW liberation and that he had been
taking medication for high blood pressure for about a year.
November 1980 hearing transcript (hereinafter T.) at 11 and
15. He also testified that he did not know if he was given
medication for high blood pressure in service. T. 15.
A May 1982 VA hospital summary discloses a history of
hypertension since 1944 which was only recently treated and
COPD since 1961.
On a VA POW protocol examination in February 1984, the
veteran complained of shortness of breath of about 20 years
duration. The pertinent diagnoses were severe COPD
manifested with shortness of breath and chronic bronchitis
and hypertension.
In a January 1985 decision, the Board denied the veteran's
claim of service connection for COPD and hypertension
because they were not shown in service and hypertension was
not shown within one year of service discharge.
The RO construed the veteran's February 1987 statement as a
request to reopen the claim of service connection for COPD
and hypertension.
The relevant evidence associated with the veteran's claim to
reopen is as follows.
Copies or originals of service medical records dated in
March 1945 (records of Letterman General), December 1950
(report of re-enlistment examination), January 1951 (record
of chronological clinical treatment), January 1955 (report
of re-enlistment examination), May through September 1955
(record of chronological clinical treatment and record of
hospitalization), February 1956 through July 1962 (records
of chronological clinical treatment) and May 1963 (report of
medical history on retirement examination).
VA clinical records beginning in March 1969 disclose that
several blood pressure readings recorded in March and April
1969 were all below 140/90; in April 1975 the veteran
complained of a morning cough; between March 1975 and August
1977 several blood pressure readings were both below and
over 140/90; in October 1976, he complained of shortness of
breath of six months duration; in September 1978, the
veteran's blood pressure was elevated, he was started on
medication; also in September 1978, he complained of chronic
shortness of breath of several months' duration, the
impression was COPD and chronic bronchitis by history.
Records of private physicians disclose the following: In
December 1979 and December 1980, the veteran was on
medication for respiratory problems and hypertension; in
March 1982, COPD was reported; and in March 1982 history
included occasional high blood pressure and respiratory
problems.
An April 1985 report of VA examination discloses a finding
of COPD in 1984. A October 1986 report of a VA POW protocol
examination discloses a history of COPD since 1976 and
hypertension first noted in 1945.
VA records and records of private hospitals and a private
physician disclose treatment of COPD during the period from
November 1986 to September 1991.
The veteran testified that he was first treated for upper
respiratory problems in the late 1950s or early 1960s.
April 1989 hearing transcript (hereinafter T.) at 7. He
also testified that he did not remember the first time he
was put on medication for hypertension. T. 14.
Analysis
For the purpose of the Board's discussion, we recognize as
elevated blood pressure, readings of 140/90 or greater on
the average of two or more readings on two or more
occasions, that hypertension should not be diagnosed on the
basis of single measurement, that initial elevated readings
should be confirmed on a least two subsequent visits, with
average levels of diastolic pressure of 90 or greater or
systolic 140 or greater required for diagnosis, and that
repeat blood pressure measurements will determine whether
initial elevations persist or whether they have returned to
normal. The 1988 Report of the Joint National Committee on
Detection, Evaluation, and Treatment of High Blood Pressure
3-7 (U.S. Department of Health and Human Services, Public
Health Service, National Institutes of Health 1988).
The January 1985 decision by the Board, denying service
connection for COPD and hypertension, is final. 38 U.S.C.A.
§ 7104(b). When a claim has been disallowed by the Board,
it shall be reopened if new and material evidence is
presented or secured. 38 U.S.C.A. § 5108.
In considering whether a claim may be reopened, a two step
analysis must be performed. First, the Board must determine
whether the evidence is new and material. Second, if the
evidence is new and material, then the case is reopened and
the merits of the claim are evaluated in light of all the
evidence, both old and new. Manio v. Derwinski, 1 Vet.App.
140, 145 (1991).
In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the
United States Court of Veterans Appeals defined the
statutory terms "new" and "material". Evidence is "new" if
it is not "merely cumulative of other evidence on the
record." For evidence to be "material", "there must be a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome."
Of the additional evidence, the copies or originals of
service medical records dated in March 1945 (records of
Letterman General), December 1950 (report of re-enlistment
examination), January 1951 (record of chronological clinical
treatment), January 1955 (report of re-enlistment
examination), May through September 1955 (record of
chronological clinical treatment and record of
hospitalization), February 1956 through July 1962 (records
of chronological clinical treatment) are not new because
they were previously on the record when these issues were
considered by the Board in January 1985.
While the May 1963 report of medical history was not
previously on the record, the identical information about
occasional colds and dyspnea on exertion was recorded in the
report of medical examination for retirement, which was.
Stated differently this evidence is merely cumulative as it
supports a point already established by other evidence on
the record.
As to the records of private physicians disclosing that the
veteran was on medication for respiratory problems and
hypertension in December 1979 and December 1980 and the
March 1982 reference to COPD and history of occasional high
blood pressure and respiratory problems, this evidence is
merely cumulative as a history of hypertension was noted on
VA examination in May 1979 and COPD was diagnosed in
November 1979 evidence which were previously on the
record.
The April 1985 report of VA examination disclosing a finding
of COPD in 1984, the October 1986 report of a VA POW
protocol examination disclosing a history of hypertension
since 1945, and the VA records and records of private
hospitals and a private physician disclosing treatment of
COPD during the period from November 1986 to September 1991
are also merely cumulative as COPD was diagnosed in November
1979, and hypertension had been diagnosed in 1978. The
history of hypertension since 1945 reported by the veteran
during the October 1986 POW examination is also cumulative,
since it reiterates a contention previously considered by
the Board.
As to the veteran's April 1989 testimony about being treated
for upper respiratory problems in the late 1950s or early
1960s, this is merely cumulative as the service medical
records already establish that he was treated for acute
respiratory problems during this time period. As to his
testimony that he did not remember the first time he was put
on medication for hypertension, this is the same statement
he made during a November 1980 hearing. So that the
testimony is not new.
The Board does find new evidence in the VA medical records
beginning in March 1969 and up to September 1978 and the
history of COPD since 1976 on the October 1986 VA POW
protocol examination because it has not previously been
considered.
While the evidence is new, it is not material as it does not
tend to alter the facts previously established that COPD and
essential hypertension were not shown to be present in
service and essential hypertension was not shown within one
year of service discharge. These records show that the
veteran was first treated for hypertension in September 1978
fifteen years after service with no clinical documentation
or history of chronic hypertension in the interval between
service and September 1978. Rather the evidence shows that
both normal and elevated readings were recorded after March
1975. Prior to that, normal readings were recorded in March
and April 1969. Regarding COPD, these records show that he
complained of shortness of breath in October 1976. At that
time there was a six month history of symptoms. There is no
clinical data or reference to such data to bridge the gap
between service and the 1976 complaint of shortness of
breath to link it to service.
When viewed in the context of all the evidence, the new
evidence does not offer a reasonable possibility of changing
the outcome of the January 1985 decision of the Board. The
requirements of 38 U.S.C.A. § 5108 therefore are not met and
the claim is not reopened.
As there is not an approximate balance of positive and
negative evidence on the merits of whether the evidence is
new and material, the benefit-of-the-doubt doctrine does not
apply.
II. Service Connection for Left Eye Disability
Background
The evidence in favor of the veteran's claim consists of the
following:
The service medical records reveal no eye abnormality on
entrance examination in December 1940. After the veteran's
liberation in February 1945, he was described as severely
malnourished. History included beriberi and optic neuritis
while a POW. During hospitalization at Letterman General in
March 1945, the pertinent findings were vision of 20/20 in
the right eye and 20/100 in the left eye; beriberi defective
vision was diagnosed. During the second period of service,
there was frequent reference to optic neuritis by history.
On neurological evaluation in March 1963 for a history of
beriberi neuritis, he gave a history of wet and dry beriberi
and temporary blindness as a POW. Examination revealed
pallor of the optic disk, bilaterally. The impression was
symptoms compatible with beriberi polyneuropathy.
The veteran testified that he suffered temporary blindness
due to a poor diet while a POW. November 1980 hearing
transcript at 4.
G. H. Henton, M.D., examined the veteran in February and
March 1981. In his report, the veteran's complaints
included light sensitivity, eye fatigue and blurred vision.
The pertinent findings were essentially normal fundi and
retinal changes from laser treatment. The diagnoses were:
retrobulbar neuritis since the time the veteran was a POW;
hyperastigmatism and presbyopia in each eye; and, retinal
arteriosclerosis with vitreous opacities and history of
laser treatment to prevent detached retina in 1977 and 1978.
In a May 1982 statement, G. H. Henton, M.D., stated that the
veteran provided service medical records dated in December
1940 (report of entrance examination), April 1945 (eye
examination while at Crile General) and September 1955 (eye
refraction data) and that based on these records, the
veteran's astigmatism was acquired as the result of injury
sustained while a POW.
The evidence against the claim consists of the following:
On hospitalization in April and May 1941 primarily for
psychiatric evaluation compound, hyperopic, bilateral
astigmatism was reported; visual acuity was 20/25 in the
right eye and 20/200 in the left eye. Identical findings
were reported in August 1941.
During hospitalization at Crile General in April 1945 and
after ophthalmologic examination, the diagnosis was
compound, hyperopic, bilateral astigmatism. Visual acuity
without correction was 20/20 in the right eye and 20/200 in
the left eye. On separation examination in February 1946,
uncorrected vision was 20/20 in each eye.
Except for refractive changes and astigmatism, optic
neuritis was not found on VA examinations in May and
September 1945 and in December 1947.
On entrance examination for the second period of service in
June 1948, visual acuity was 20/20 in the right eye and
20/70 in the left eye, correctable to 20/40. In June 1954,
he suffered an abrasion of the left cornea which healed
without scar formation. In September 1955, eye refraction
data showed 20/200 for the left eye uncorrected. In
December 1958, the left optic disk was normal and no fundal
pathology of the left eye was found to explain poor vision.
On periodic examination in November 1961, left myopia was
recorded. On eye examination in August 1962, the veteran
complained of difficulty with near work, TV and sun glare.
Internal and external examination of the eyes was negative.
The impressions were: remote, nutritional optic neuritis;
symptomatic presbyopia; and anisometropia. On neurological
evaluation in April 1963, the physician found no pallor of
the optic disks and no objective evidence of neurological
disease. On another evaluation in conjunction with
retirement in May 1963, the same physician found no evidence
of residual beriberi and no organic neurologic disease.
On retirement medical examination in May 1963, history
included optic neuritis and defective vision since 1959. On
eye examination to evaluate the veteran's history of optic
neuritis, the fundi including the maculae and vessels were
normal. The optic disks were of normal color without
diminution in the normal number of capillaries. The
impression was: Remote nutritional optic neuritis by
history and hyperopia, presbyopia and anisometropia.
On VA examination in October 1963, residuals of optic
neuritis were not found on eye examination. The pertinent
diagnoses were: bilateral hyperopic astigmatism, bilateral
presbyopia and residuals of optic neuritis in either eye not
found.
On VA neuropsychiatric examination in March 1964, no
residual neurological disease due to malnutrition was found.
VA records show that beginning in November 1976, he
complained of flashes of light in the right visual field
followed by floaters. Objectively, visual acuity was normal
as were the fundi. On examination in February 1977, lattice
degeneration in each eye was found. A VA hospital summary
discloses that in March 1977 he had laser treatment for
lattice degeneration of one eye. A subclinical retinal
detachment of the right eye and retinal holes in the left
eye were also reported.
Optic neuritis was not found on VA examination in November
1979. On VA eye examination in January 1981, history
included optic neuritis as a POW. The diagnoses were:
defective vision and macular scars of the left eye; compound
hyperopic astigmatism and presbyopia.
On VA examination in April 1985, the clinical history
relating to the eyes was traced to 1941.
In July 1985, the veteran was admitted to the Neurology
Service at the Portland, VA Medical Center, for evaluation
of residuals of beriberi, including ocular complaints.
Visual evoked responses to evaluate potential neuritis were
within normal limits. Optic neuritis was not documented.
Records of a private hospital disclose that in February
1988, the veteran complained of flashes of light in his left
eye with some "floaters". Objectively, vision was intact.
With dilation, the disks were sharp and the vessels were
intact. There was no evidence of a left retinal separation
and no vitreous floaters. The diagnosis was scotomata.
Left eye lattice degeneration and retinal hole with
posterior vitreous detachment was reported on VA eye
examination in April 1988. Cataract history was noted.
Bilateral cataracts were found on physical examination
during private hospitalization beginning in July 1989. A
history of optic neuritis as a POW was noted.
Analysis
Service-connected disability compensation will be granted
for disability which is the result of injury suffered or
disease contracted in the line of duty during service.
38 U.S.C.A. § 1110. 38 C.F.R. § 3.303(a) (1991) expands on
the principles relating to service connection and provides,
in part, that service connection means that the facts, shown
by evidence, establish that a particular injury or disease
resulting in a disability was incurred coincident with
service. This may be accomplished by affirmatively showing
inception in service or through the application of statutory
presumptions.
As the veteran is a former prisoner of war, there is a
lifetime presumption of service connection for optic atrophy
associated with malnutrition. This applies if it becomes
manifest to a degree of 10 percent or more at any time after
discharge from service. 38 U.S.C.A. § 1112(b)(5)
(West 1991).
Hyperopia and myopia which were shown in service describe
types of refractive error. Dorland's Illustrated Medical
Dictionary 795, 1092 (27th ed. 1988). Under subsection (c)
of 38 C.F.R. § 3.303, refractive error of the eye is not a
disease or injury within the meaning of applicable
legislation. Anisometropia and presbyopia which were also
noted in service are not disease processes. Anisometropia
refers to the difference in refractive power of the two
eyes. Dorland's at 90. Presbyopia is a type of refractive
error defined as impairment of vision due to the aging
process. Dorland's at 1352.
Compound, hyperopic, bilateral astigmatism was also shown in
service. According to Dorland's at 159, astigmatism can be
congenital or acquired due to injury or disease. The
evidence that the condition was acquired consists of the May
1982 statement of Dr. Henton, who based his opinion on the
December 1940 report of entrance examination, an April 1945
eye examination and September 1955 eye refraction data.
Absent from the service medical records Dr. Henton
considered is the April 1941 report of compound, hyperopic,
bilateral astigmatism and identical findings reported a
month later. The record clearly shows that astigmatism was
present before the veteran's POW experience. Moreover, in
1941, left eye vision was 20/200 and in 1945 left eye vision
was initially 20/100 and then reported as 20/200.
As the findings were essentially identical, no increase in
impaired vision of the left eye due his POW experience was
demonstrated. Based on this, the Board rejects the
conclusion reached by Dr. Henton that the astigmatism was
acquired as the result of injury suffered while a POW. As
no injury or disease was clinically associated with the
finding of astigmatism in 1941 (the veteran was being seen
for psychiatric evaluation), the Board finds no positive
evidence that the condition was acquired. We, therefore,
conclude that the condition was congenital in origin. Under
subsection (c) of 38 C.F.R. § 3.303, a congenital defect is
not a disease or injury within the meaning of applicable
legislation.
The service medical records disclose that beriberi defective
vision was diagnosed in March 1945, pallor of the optic
disks was reported in March 1963 and Dr. Henton diagnosed
retrobulbar neuritis in 1981.
According to 2 Harrison's Principles of Internal Medicine
2084 (Jean D. Wilson, M.D., et al., eds., 12th ed. 1991):
Deficiency amblyopia (nutritional optic
neuropathy...) These terms refer to a
characteristic form of visual impairment
that complicates nutritional disease and
is due to a lesion in the optic nerve,
more or less confined to the zone of the
papillomacular bundle. The cornea and
other parts of the refractive mechanism
are uninvolved, hence the term amblyopia.
The main symptoms are dimness or blurring
of vision for near and distant objects and
impairment of color vision, which worsens
progressively and insidiously for several
days or weeks....Pallor of the temporal
portion of the optic disc is observed in
some cases. Untreated, this condition
progresses to irreversible optic atrophy.
Deficiency amblyopia was common in
prisoners of war.
In 2 Cecil Textbook of Medicine 2292 (James B. Wyngaarden,
M.D., Lloyd H. Smith, Jr., M.D., eds., 18th ed. 1988):
Optic atrophy results from the death of
the axons in the retina and optic nerve.
Disc pallor and optic atrophy are not
synonymous....Disc pallor is a finding to
be evaluated in the context of the entire
ophthalmologic and neurologic examination.
In Hunter's Tropical Medicine 926 (G. Thomas Strickland,
M.D., ed., 7th ed., 1991), retrobulbar neuritis is a less
frequent sign of dry beriberi.
Except for the March 1945 diagnosis of beriberi defective
vision, the March 1963 finding of pallor of the optic disks
and Dr. Henton's 1981 diagnosis of retrobulbar neuritis, all
other reports of eye and neurological evaluations failed to
demonstrate the presence of optic neuritis or optic atrophy
due to nutritional deficiency either in service or after
service.
There is a conspicuous lack of contemporaneous medical
evidence after each positive finding, confirming the presence
of a left eye condition attributable to nutritional
deficiency. Notably, on the April 1945 examination,
astigmatism was diagnosed following the diagnosis of beriberi
defective vision in March 1945; the April and May 1963 eye
and neurological evaluations revealed no evidence of
neurological disease and remote nutritional optic neuritis by
history only following a finding of pallor of the optic disks
in March 1963; and the July 1985 neurological evaluation
including diagnostic testing to evaluate potential optic
neuritis was within normal limits following Dr. Henton's
diagnosis of retrobulbar neuritis in 1981.
Overall the evidence is strongly persuasive that after the
temporary blindness and visual impairment compatible with
nutritional deficiency the veteran experienced as a POW, the
condition did not progress to irreversible optic atrophy as
none of the evidence, even that which is most favorable to
the veteran, has documented such a condition.
As to the left eye conditions first shown many years after
service; namely, lattice degeneration, retinal holes and
arteriosclerosis, macular scars, scotomata and cataract, none
began in service or has been clinically associated with optic
neuritis due to nutritional deficiency disease.
As the evidence of record as to whether the veteran has an
acquired left eye disorder related to service, including his
POW experience, is not in equipoise, the benefit-of-the-doubt
does not apply. 38 U.S.C.A. § 5107(b).
III. An Earlier Effective Date for
a Separate 20 percent Schedular Rating for
Beriberi Neuritis of Each Lower Extremity and
a Total Rating Based on Individual Unemployability
Due to Service-Connected Disabilities.
It was argued that the Board 's June 1986 decision,
pertaining to increased ratings for residuals of beriberi and
a total rating based on individual unemployability, involved
clear and unmistakable error because the veteran was not
examined by a specialist in neurology, one preferably
familiar with nutritional deficiency disease, as requested in
the Board's January 1985 remand.
Clear and unmistakable error will be found only where there
is an administrative failure to apply the correct statutory
and regulatory provisions to the correct and relevant facts.
Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991).
There is no allegation that the Board failed to apply the
correct statutory and regulatory provisions or that the Board
did not have the relevant and correct facts before it in
1986. It is simply argued that the veteran was not examined
by a specialist in neurology, one preferably familiar with
nutritional deficiency disease.
The record shows that in July 1985 the veteran was
hospitalized for evaluation by the Neurology Service for any
potential neurology deficits, specifically peripheral
neuropathy, attributable to service-connected beriberi which
he contracted as a POW.
In the Board's view, this complied with the request for
examination by a specialist in neurology and it satisfies
VA's duty to assist the veteran. Under 38 C.F.R. § 3.326
(1991), the term examination includes periods of
hospitalization when required by VA. While it is not clear
and actually specified that someone familiar with nutritional
deficiency disease evaluated the veteran, the omission, if
any, does not constitute administrative error as enunciated
in Oppenheimer, 1 Vet.App. at 372. This contention is
similar to that made by the veteran prior to the 1986
decision and the examination was deemed adequate by the
section which had requested it.
Background
In a June 1986 decision, the Board denied increased ratings
for residuals of beriberi and pellagra, including beriberi
neuritis, and a total rating based on individual
unemployability.
A VA social and industrial survey was conducted on September
12, 1986. The report shows that the veteran was severely
depressed.
In February 1987, the veteran's claims for increased ratings
for several service-connected disabilities, including
residuals of malnutrition, and a total rating based on
individual unemployability, were received.
In a March 1987 rating decision, the RO increased the rating
for service-connected psychiatric disability to 50 percent
which resulted in raising the combined disability evaluation
to 80 percent, effective from September 12, 1986, the date
of the VA social and industrial survey. Determinations on
the other service-connected disabilities and a total rating
were deferred pending an official examination and obtaining
VA medical records. The additional VA records included a
report of a POW protocol examination conducted over several
months beginning in October 1986.
In a May 1987 rating decision, the RO increased the rating
for service-connected psychiatric disability to 70 percent,
increased from noncompensably disabling to 20 percent
disabling residuals of beriberi neuritis for each lower
extremity, and granted a total rating based on individual
unemployability, all effective from September 12, 1986.
Analysis
The effective date of an award of compensation based on a
claim for increase will be the date of receipt of the claim
or date entitlement arose, whichever is the later; unless,
it is factually ascertainable that an increase in disability
had occurred within one year from the date of receipt of
claim. 38 C.F.R. § 3.400(o)(1)-(2), which mirrors and
implements 38 U.S.C.A. § 5110(a)-(b)(2).
As the Board had denied the veteran's claims for increased
ratings and a total rating in a June 1986 decision, the
subsequent VA social and industrial survey conducted on
September 12, 1986, was accepted as an informal claim for
increased benefits. 38 C.F.R. § 3.157(b) (1991).
Subsection (b)(1) of the same regulation provides that the
date of the outpatient examination serves as the date of
receipt of claim.
As the date of the outpatient examination serves as the date
of receipt of claim, the Board can look at the evidence of
record one year prior to September 1986 (limited to that
evidence which had not been considered in the final June
1986 Board decision) to determine if there had been an
increase in disability.
In the preceding year, the evidence shows that from
September 1985 to August 1986 the veteran was treated by a
private physician for nonservice-connected COPD and
arteriovascular deficiency and right elbow pain. VA records
show that between September and December 1985, he was also
treated for nonservice-connected COPD and eye problems as
well as service-connected skin condition.
This evidence does not support an increase in disability for
either the service-connected psychiatric disorder or
residuals of beriberi neuritis of each lower extremity which
were the basis for the subsequent finding of total
disability in the May 1987 rating decision.
As the evidence does not support a factual determination
that an increase in disability had occurred within the one
year prior to September 1986, September 12, 1986, the date
of the outpatient examination serves as the date of receipt
of claim and that date was properly assigned as the
effective date for the increased ratings and a total rating.
It is contended that the date of entitlement for increased
compensation should be August 25, 1977 because that claim
was not finally adjudicated until the rating decision in May
1987.
The claim received on August 25, 1977, in part, was for
increased ratings for service-connected disabilities. That
claim was pending when in August 1979 the RO adjudicated the
claims for increased ratings. The veteran timely appealed
that rating decision and in the April l980 substantive
appeal raised the issue of unemployability. These issues
were denied on appellate review by the Board in the June
1986 decision. In other words, the August 1977 claim was
not pending at the time of the May 1987 rating decision
because it had been finally adjudicated in the Board's
decision in June 1986. 38 C.F.R. § 3.160(d) (1991).
CONTINUED ON NEXT PAGE
ORDER
New and material evidence not having been submitted to
reopen the claims, service connection for COPD and
hypertension remains denied.
Entitlement to service connection for a left eye disability
is denied.
Entitlement to an effective date earlier than
September 12, 1986, for a separate 20 percent schedular
rating for beriberi neuritis of each lower extremity and for
a total rating based on individual unemployability due to
service-connected disabilities is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
J. E.DAY (MEMBER TEMPORARILY ABSENT)
SAMUEL W. WARNER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
CONTINUED ON NEXT PAGE
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266
(1991), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date which appears
on the face of this decision constitutes the date of mailing
and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board
of Veterans' Appeals.